An administrative law judge for the Equal Rights Division of the Department of
Workforce Development issued a decision in this matter. A timely petition for review was
filed.

The commission has considered the petition and the positions of the parties, and it has
reviewed the evidence submitted to the administrative law judge. Based on its review, the
commission agrees with the decision of the administrative law judge, and it adopts the
findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed August 25, 2000smithli.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant's initial burden in a disability discrimination case is to establish
that she is an individual with a disability, within the meaning of the Wisconsin Fair
Employment Act (hereinafter "Act.") Boynton Cab Co. v. DILHR,
96 Wis. 2d 396, 291 N.W.2d 850 (1980). Section 111.32(8) of the Act defines the term
"individual with a disability" as an individual who has a physical or mental
impairment which makes achievement unusually difficult or limits the capacity to work, has
a record of such an impairment, or is perceived as having such an impairment. An
"impairment" for purposes of the Act is a real or perceived lessening or
deterioration or damage to the normal bodily function or bodily condition, or the absence
of such bodily function or condition. City of La Crosse Police and Fire Comm.
v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine
whether an impairment makes achievement unusually difficult is concerned with the question
of whether there is a substantial limitation on life's normal functions or on a major life
activity. By contrast, the "limits the capacity to work" test refers to the
particular job in question. Further, the inquiry concerning the effect of an impairment is
not about mere difficulty, but about "unusual" difficulty. AMC v.
LIRC, 19 Wis. 2d 706, 350 N.W.2d 120 (1984). Flores
v. Amcast Corp. (LIRC, October 13, 1994).

In this case, the evidence indicates that the complainant has a diagnosed mental
impairment. However, the commission is unpersuaded that the complainant has satisfied her
burden of demonstrating that her impairment made achievement unusually difficult for her
or limited her capacity to work. The complainant's therapist/social worker, Linda
Rounseville, testified that, as a result of her mental impairment, the complainant
experienced symptoms including tearfulness, negative thoughts, difficulty concentrating
and relating to people, racing heartbeat, and difficulty sleeping. However, Ms.
Rounseville did not explain how or to what degree these symptoms made achievement
difficult for the complainant or limited her in the performance of life's normal
functions, nor did she specify whether any such limitations were long-term or temporary in
duration. Consequently, the commission does not find that the complainant presented
sufficient evidence to warrant a conclusion that she was substantially restricted in her
ability to function or that achievement was unusually difficult for her.

Moreover, while Ms. Rounseville recommended that the complainant not work with Dr.
Schmidt or at Sinai Samaritan Medical Center, she testified that the complainant was not
disqualified from performing any position because of her mental condition and that she
could do her job at Sinai Samaritan so long as she did not have frequent contact with Dr.
Schmidt. (1) Given this testimony, and
considering that Dr. Schmidt's practice was located in a different building, so that his
contact with the complainant was limited to occasional meetings that brought him to Sinai
Samaritan, the commission sees no reason to conclude that the complainant's mental
impairment limited her capacity to perform her job.

In her petition the complainant also argues that she satisfied the other tests to be
considered an individual with a disability. However, the commission sees no basis to
conclude that the complainant has a record of a disability, nor does it see any reason to
believe that the respondent perceived her as being disabled. The commission, therefore,
agrees with the administrative law judge that the complainant failed in her burden of
demonstrating that she is an individual with a disability who is entitled to the
protections of the Act. Accordingly, the dismissal of the complaint is affirmed.

(1)( Back ) The complainant's expert
witnesses were unpersuasive in their testimony with respect to her workplace limitations.
Ms. Rounseville originally testified that the complainant had anxiety and panic attacks
every time she got close to Sinai Samaritan, and could not even enter the building due to
her post-traumatic stress disorder. However, Ms. Rounseville subsequently contradicted her
own testimony by stating that the complainant could work in the building if she
were not working around Dr. Schmidt. To further confuse the matter, Dr. Logan, the
complainant's treating psychiatrist, acknowledged in his deposition that his understanding
of the restrictions the complainant required to perform her job was based upon the
incorrect assumption that Dr. Schmidt worked with the complainant at Sinai Samaritan. It
also appears that Dr. Logan was operating under a misapprehension that, as of the time
period in question, Dr. Schmidt's harassment of the complainant was ongoing. It is not
clear from the deposition that Dr. Logan's recommendation would have been the same had he
understood that the harassment had ceased approximately four years earlier and that Dr.
Schmidt did not work with the complainant on a regular basis.